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Independent News and Media

(Editorial)

Submission to the review of the

Defamation Act 2009 – publication

consultation

31st December 2016

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Table of Contents

1.0 Context of the Review……….P. 3

2.0 The under-protection of the right to free speech………. P. 6

3.0 Independent News and Media………. P. 9

4.0 NewsBrands………. P. 12

5.0 Juries………. P. 12

6.0 Damages………. P. 15

7.0 User generated comment………. P. 17

8.0 Serious harm………. P. 19

9.0 Operational realities………. P. 20

10.0 Legal costs……….. P. 21

11.0 Errors………. P. 22

12.0 Press Ombudsman………. P. 22

13.0 Ireland’s reputation………. P. 23

14.0 Conclusion………. P. 24

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Independent News and Media (Editorial)

Submission for Review of the Defamation Act 2009

– public consultation

1.0 Context of the Review

1.1 On 1st November 2016, the Tánaiste and Minister for Justice and

Equality, Frances Fitzgerald T.D., announced the commencement of a

public consultation process, as part of the statutory review of the

Defamation Act 2009. Organisations or individuals wishing to contribute

to the review were invited to send a submission by 31 December 2016.

1.2 Under section 5 of the Defamation Act 2009, the Minister for Justice

and Equality is required to review the operation of the Act within five

years of its passing. The review would normally have commenced in

July 2014, but was deferred by the Government who cited other “urgent

legislative priorities”.1

1.3 Independent News and Media welcomes this long overdue review,

which must underpin the values of transparency, freedom of expression

and public interest journalism, all of which are integral to a healthy

democratic society. Independent News and Media notes that this review

is taking place at a time when there are continuing serious concerns

about the size and the scale of libel awards in Ireland. Put simply, this is

1 Department of Justice and Equality Press Statement, ‘Tánaiste announces statutory review of Defamation Act 2009 and public consultation process,’ (1 November 2016).

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having a chilling effect on the media’s role as a watchdog for the public.

Excessive awards could lead to the closure of newspapers, a

consequent loss of jobs and, at the same time, negatively impact on

Ireland’s democratic system and our international reputation. It is worth

noting that the European Court of Human Rights has accepted in recent

years that excessive awards undermine the right to free speech and a

free press.2

1.4 NewsBrands Ireland, formerly National Newspapers of Ireland, which

represents sixteen national newspapers and websites, has also warned

that the level of awards in defamation cases presents a huge challenge

to freedom of expression in Ireland. In a statement welcoming this

current review of the Defamation Act 2009, NewsBrands Ireland said:

“The costs involved and the level of awards made place an enormous

burden on publishers. Since 2010, defamation actions have cost

NewsBrands members in excess of €30 million. Awards made in Ireland

are wholly out of kilter with other jurisdictions, including the UK, where

effectively a cap of £275,000 (€305,000) exists, though the reality is that

awards rarely exceed £100,000 (€110,700), a fraction of the levels

awarded in Ireland.”3

1.5 Ireland’s defamation regime is arguably the most stringent in Europe

and this is a stain on our international reputation and damaging our

human rights credentials. An oppressive defamation regime that seeks

2 Irish Times, ‘World Press Freedom Day: Time to review defamation legislation,’ (3 May 2016). 3 Irish Independent, ‘Libel laws face review as “awards in Ireland are wholly out of kilter,”’ (2 November 2016).

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to continue to impose unsustainable damages on media organisations is

undermining journalists in their essential democratic duty to hold to

account those in positions of power and influence.

1.6 The Parliamentary Assembly of the Council of Europe adopted a

resolution which “condemns abusive recourse to unreasonably large

awards for damages and interest in defamation cases and points out

that a compensation award of a disproportionate amount may also

contravene Article 10 of the European Convention on Human Rights”.4

1.7 The Council of Europe has also called on member states to “set

reasonable and proportionate maxima for awards for damages and

interest in defamation cases so that the viability of a defendant media

organ is not placed at risk”5 and to “provide appropriate legal guarantees

against awards for damages and interest that are disproportionate to the

actual injury.”6 The Defamation regime that exists in Ireland does so in

stark contrast to the Council of Europe’s resolution.

1.8 Independent News and Media believes that the current review of the

Defamation Act must lead to the provision of adequate and effective

safeguards against disproportionate awards in defamation actions.

Although the Defamation Act 2009 allows judges to give more directions

4 Parliamentary Assembly of the Council of Europe, Resolution 1577, Text adopted by the Assembly on 4 October 2007 (34th Sitting). 5 Parliamentary Assembly of the Council of Europe, Resolution 1577, Text adopted by the Assembly on 4 October 2007 (34th Sitting). 6 Parliamentary Assembly of the Council of Europe, Resolution 1577, Text adopted by the Assembly on 4 October 2007 (34th Sitting).

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to juries on the assessment of damages, this has brought about only

limited changes and libel awards remain much higher in Ireland than

elsewhere in Europe.

1.9 NewsBrands Ireland has pointed out that the decision of the

Supreme Court in December 2014 “to award €1.25million in a case

which it accepted was not the most serious of defamation actions puts

Ireland wholly out of kilter with its neighbouring jurisdictions. The award

is approximately ten times higher than would have been made in the

UK”.7 NewsBrands also suggests that the substantial level of awards in

defamation cases is impacting on democratic discourse in Ireland and

“given the costs involved, many newspapers simply won’t take the risk of

publishing an article, no matter how certain they are of their facts”.8

2.0 The under-protection of the right to free speech

2.1 Freedom House, an independent international watchdog dedicated

to the protection and expansion of democracy around the world, notes in

its 2016 assessment of Ireland’s “Freedom of the Press status” that

“archaic defamation laws continue to place the burden of proof on

defendants.”9 In explaining the context for this review, the Tánaiste

stated that “defamation law needs to strike the right balance between

two important rights - the right to freedom of expression in a democratic

society, and the right to protect your good name and reputation against

7 NewsBrands Ireland, ‘Defamation,’ Available at http://newsbrandsireland.ie/policy-issues/defamation/ 8 NewsBrands Ireland, ‘Defamation,’ Available at http://newsbrandsireland.ie/policy-issues/defamation/ 9 Freedom House, Ireland: Freedom of the Press, Available at https://freedomhouse.org/report/freedom-press/2016/ireland

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unfounded attack.”.10 In May 2014, the late Supreme Court Judge,

Adrian Hardiman, suggested that there was an “inherent tension” in Irish

defamation law because of “the competing constitutional values of the

citizen’s right to his good name (Article 40.3.2) and the right ‘of the

citizens’ to express freely their convictions and opinion (Article 40.6.1).”11

2.2 Professor Neville Cox, a barrister and the Dean of Graduate Studies

in Trinity College Dublin, and Eoin McCullough, a leading Senior

Counsel, in their detailed analysis of Irish defamation law, suggest that,

vis-à-vis other major constitutional democracies, “the protection of free

speech under the Irish constitution is a comparatively weak one” and

they point out that there have been “many concerns expressed that,

certainly before enactment of the 2009 Act (and quite possibly after it),

[that] the law was nonetheless, over-protective of the plaintiff’s right to a

good name and under-protective of the defendant’s right to free

speech”.12

2.3 The under-protection of the right to free speech is a matter that this

review process must finally resolve. Even prior to the enactment of the

2009 Act, “calls were made in the last three decades for some kind of

reform of defamation law that would improve the position of defendants

10 Department of Justice and Equality Press Statement, ‘Tánaiste announces statutory review of Defamation Act 2009 and public consultation process,’ (1 November 2016). 11 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. vii 12 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), pp. 3-4

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and especially media defendants”.13 Notable among these calls were

the Law Reform Commission’s Report on the Civil Law of Defamation

(1991) and the report of the Minister for Justice’s Legal Advisory Group

on the Tort of Defamation (2003).

2.4 Cox and McCullough point out that “it was in the context of these

imperatives that the Defamation Act of 2009 was enacted. It was

originally presented as a sweeping legislative reform of the tort to reflect

an ideological perspective that was more supportive of the right to free

speech”.14 Indeed, when the Defamation Bill of 2006 was first published,

there was a perception that the shift in favour of media freedom was

such that it was “deemed necessary to create a Press Council for the

purposes of ensuring an internalised level of media control”.15 A Press

Council was established in 2007 and Independent News and Media

works in strong co-operation with this statutory body, however, by 2009,

when defamation legislation was finally enacted, replacing the

Defamation Act 1961, “a good deal of the reforming impetus that had

heralded the Bill’s original publication had been lost”.16

2.5 According to Cox and McCullough, the 2009 Act, ultimately did not

“reshape” defamation law in any way and “rather it was an attempt to

codify the law as it had developed through judicial interpretation over the

13 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. 5. 14 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. 9. 15 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. 9. 16 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. 10.

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previous 50 years”.17 The same experts also state that the Defamation

Act 2009 “has arguably not altered the balance that Irish defamation law

draws between free speech and the right to a good name in any

meaningful way”.18 Until the unfair, anti-democratic and damaging

under-protection of free speech is meaningfully addressed, Irish

defamation law will continue to be unfit for purpose and will consider to

generate considerable controversy.

2.6 In welcoming this review process, the Press Council of Ireland said

that “central to any proposed changes in the Defamation Act must be the

protection of the right of freedom of expression.”19 Independent News

and Media fully concurs with that view.

3.0 Independent News and Media

3.1 Independent News and Media is the largest national newspaper

publisher in the Republic of Ireland. It publishes four national print titles

– the Irish Independent, Sunday Independent, Herald and Sunday World

– and three news websites – independent.ie, sundayworld.com and

herald.ie. Independent News and Media publishes 13 regional titles and

associated websites which are contributing to a separate submission

under the auspices of the umbrella group, Local Ireland.

17 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. ix. 18 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. 5. 19 Press Council of Ireland Statement, ‘Review of the Defamation Act 2009 – Public consultation,’ (1 November 2016).

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3.2 The four national print titles present a diverse range of news and

opinion and inform the public debate in Ireland. They are indigenous

titles that form part of the cultural fabric of our society. Independent

News and Media employs approximately 1,000 people.

3.3 Independent News and Media is a public limited company but at its

core is the pursuit of independent, public interest journalism. Our

submission does not seek to excuse any instances of poor journalism or

the publication of articles found to be dishonest, inaccurate or cause

unnecessary distress or damage to the reputation of an individual or an

organisation. We are however determined not to be deflected from our

mission of keeping our readers and audiences informed and to provide

fearless commentary in the public interest. The introduction to our

Editorial Code of Practice states the following: “Independent News and

Media (INM) is pledged to be professional, courageous and relentless in

its pursuit of truth and of news. It is also committed to independence,

fairness and balance in informing people of events and issues about

which they have a right to know.”

3.4 Journalism holds the rich and powerful to account and is

fundamental to the proper, transparent functioning of democracy.

Defamation laws that stymie fearless investigative journalism and

promote self-censorship are not serving the public interest. As 2016, the

year in which Ireland commemorated the centenary of the Easter Rising,

draws to a close, it is worth reflecting on words on the nature of freedom

by Leonard Hoffman, the British Lord Justice of Appeal, as cited by Mr

Justice Nial Fennelly in an Irish Supreme Court judgment. Hoffman

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said: “A freedom which is restricted to what judges think to be

responsible or in the public interest is no freedom. Freedom means the

right to publish things which government and judges, however well

motivated, think should not be published.”20

3.5 Working within the confines of Ireland’s draconian defamation

regime is a maze-like occupational hazard for our journalists and unduly

curtails freedom of expression. Our defamation laws are out of step with

our neighbouring common law jurisdictions in England and Wales and

Scotland and with the rest of the European Union. In France and

Belgium, for example, damages are frequently awarded in symbolic

values only (i.e, €1). In the Netherlands, the average is between €1,000

and €5,000; €25,000 would be seen as an extremely high amount. In

Sweden, the highest awards will usually be the equivalent of €10,000 to

€15,000. In Germany, libel in cases involving the media are usually

resolved at an injunction phase, making a damage award the exception

rather than the rule.21 In Ireland, grossly excessive defamation awards

are a disproportionate financial burden at a time when the very viability

of funding for public interest journalism is under considerable threat.

3.6 Independent News and Media acknowledges that defamatory

statements without justification, of course, require redress. This has to

be done in a proportionate manner and in a way that does not

fundamentally threaten the right to freedom of speech, the role of the

Press as a watchdog and the very viability of media organisations.

20 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. 6. 21 Information provided by the International Press Institute.

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4.0 NewsBrands

4.1 Independent News and Media strongly supports the central tenets of

the NewsBrands Ireland submission to which we have contributed. The

key points were:

• the abolition of juries for defamation trials;

• a limitation on damages;

• clarity on liability for user generated comment;

and,

• the introduction of a ‘serious harm’ threshold.

4.2 In support of these proposed changes to the Defamation Act, we add

the following observations in sections 5, 6, 7 and 8 of this submission.

5.0 Juries

5.1 The continuing use of juries to decide defamation trials means that

the process is seen by publishers as somewhat akin to a game of

‘Russian roulette’. It is also out of line with other civil law cases where

juries are not used. The mere fact that a jury can decide a defamation

case and the unpredictability of this mean that publishers are on the

back foot when they receive legal complaints. This is a fundamental

problem for the justice system and this has a chill effect on the freedom

of speech which is enshrined in the Constitution of Ireland (Bunreacht na

hÉireann) and European Convention on Human Rights.

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5.2 The unpredictability of decisions on liability and damages and the

length of the process make legal costs unnecessarily punitive and

prohibitive. A view is often taken to settle seemingly unworthy claims at

an early stage to avoid staggering costs mounting. This has a

cumulative effect of encouraging complainants to seek legal advice in

the first instance rather than seek alternative remedies.

5.3 The unpredictability and the unsustainability of jury awards in

defamation cases is explored by Cox and McCullough, who state: “The

fact that it is juries who determine quantum may also explain the size of

awards in some defamation cases. It is notable, after all, that one of the

reasons why the Courts Acts 1998 removed the jury from most tort

actions was precisely because of the unsustainably high level of

damages awarded by juries in such actions. As Price, Duodu and Cain

pithily comment, ‘Twelve ordinary people who for once in their lives have

the opportunity to be bountiful on someone else’s behalf tend to err on

the side of generosity.’ The Courts Act, however, excluded (inter alia)

defamation cases from the general rule that tort actions would be heard

without a jury and thus the question of how much should be awarded in

damages is one for the jury. The essential reason for leaving the

question of quantum of damages in defamation cases to the jury is that it

is seen as appropriate in such cases that the question of quantum (like

the question of whether or not there has, in fact, been a defamation)

should reflect community values.”22

22 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. 391.

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5.4 Juries mean that defamation cases take longer to conclude,

especially as often complex legal arguments have to be explained in

detail, which would not always arise in cases heard by a judge alone.

The argument that the jury reflects community values does not take into

account the fact that a plaintiff who is genuinely concerned with

vindicating his or her good name would be no less vindicated by a

verdict from a judge than by a verdict from a jury. There are real

concerns about the lack of transparency in a jury, often with very little

legal experience, making a substantial award and not having to detail

their decision-making process. This would be alleviated if the award

was made by a judge and accompanied with a statement explaining the

judicial logic for the decision.

5.5 Cox and McCullough state that the role of the jury in assessing

damages “renders such awards unpredictable and, in particular, means

that awards in one case are not a reliable guide to the probable award in

the next.”23

5.6 Independent News and Media firmly believes that defamation trials

by jury should be abolished in favour of a hearing before a judge.

23 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), pp. 390-1.

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6.0 Damages

6.1 Independent News and Media’s submission to the European Court of

Human Rights in the Leech –v– Independent Newspapers case

summarises our position. The disproportionate nature of damages is

having a chill effect on freedom of speech. It does the justice system no

credit that there is no effective scale for damage to a person’s

reputation, in comparison to personal injuries.

6.2 Awards are also unpredictable – which damages trust in the system.

Our submission to the ECHR states: “The inherent and total

unpredictability of damages awards in itself amounts to a contravention

by Ireland of Article 10 of the Convention (Freedom of Speech)…

Publishers in Ireland thus find themselves in the position that they do not

know and cannot know (even within the range/parameters of ‘tens of

thousands’ to ‘hundreds of thousands’ of euro) what sum they may be

held liable to pay. Irish law with regard to damages in defamation thus is

entirely lacking in accessibility, foreseeability or clarity.”

6.3 The growing perception that Ireland is a “plaintiff-friendly jurisdiction,”

undoubtedly assisted by large awards of damages, is seen as a key

factor in Ireland overtaking England for the dubious distinction of being

Europe’s libel capital. The UK already has moved to counter the

practice of libel tourism, where plaintiffs have little connection with the

country, through its Defamation Act 2013.

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6.4 In 2014, Hollywood stars Justin Timberlake and Jessica Biel lodged

defamation proceedings in the High Court in Dublin, after claims they

were defamed in an article in the European edition of Heat magazine,

which is published by a German-based company.24 According to

McCarthy, this was a “high-profile example that may mark the

emergence of a trend of foreign defamation plaintiffs choosing to litigate

in Ireland” and he pointed out that “even though Ireland is not the

magazine’s biggest European market and not the location of its editorial

offices, the litigants chose Ireland as the forum for their defamation

action. Although the matter was subsequently settled out of court with an

apology, it may be a harbinger of things to come. Following the UK

reforms, it seems Dublin may replace London as the destination of

choice for defamation plaintiffs.”25

6.5 The Joint Declaration on International Mechanisms for Promoting

Freedom of Expression signed by the United Nations (UN) Special

Rapporteur on Freedom of Opinion and Expression, the Organization for

Security and Co-operation in Europe (OSCE) Representative on

Freedom of the Media; and the Organization of American States (OAS)

Special Rapporteur on Freedom of Expression states: “Civil sanctions

for defamation should not be so large as to exert a chilling effect on

freedom of expression and should be designed to restore the reputation

harmed, not to compensate the plaintiff or to punish the defendant; in

particular, pecuniary awards should be strictly proportionate to the actual

24 Irish Independent, ‘Jessica Biel and Justin Timberlake launch Dublin High Court proceedings,’ (10 October 2014). 25 Hugh McCarthy, ‘Libel tourism may become our newest cottage industry,’ published in Irish Times (10 November 2014).

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harm caused and the law should prioritise the use of a range of non-

pecuniary remedies.”26

6.6 Ireland’s draconian defamation regime is seriously out of step with

the principles set out in the above joint declaration. This is a matter that

this review process needs to address. The review process should also

look at putting a maximum cap on the scale of damage awards and, in

particular, examine the defamation regimes in Austria and Malta, which

currently provide statutory caps on non-pecuniary damages in

defamation cases involving the media.27

7.0 User generated comment

7.1 NewsBrands’ submission is well argued. Facebook and other social

media/online ‘hosting’ sites are effectively given carte blanche while

traditional/legacy news publishers are punished for what people say in

comments posted on their sites. This again is not helping to support

indigenous, public interest journalism. The playing field is already vastly

uneven and this is just exacerbating the situation.

26 Joint Declaration about Censorship by Killing and Defamation (2000), available at: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=142&lID=1.

27 In Austria, damages are capped at €20,000 in most circumstances, and at €50,000 for particularly harmful instances of defamation. In Malta, non-pecuniary damages are capped at €11,646.87. See International Press Institute, ‘Out of Balance: Defamation law in the EU in the context of press freedom,’ Available at http://ipi.freemedia.at/ecpm/key-findings/damages-and-costs.html

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7.2 INM believes that specific protection should be afforded to news

websites for third party comments. The relevant provisions of the UK

Defamation Act 2013 should be considered by this review process.

7.3 The problem of Fake News on social media sites has got a lot of

attention, since the recent Presidential Election in the United States.

Fake News is often sensationalist, defamatory and full of misinformation.

It conflicts with the commitment of reputable media organisations to

serve the public interest, to report truthfully and to meet the highest

standards of journalism. Fake News sites are increasingly impinging on

the commercial viability of reputable media organisations by forcing

downwards their readership figures and online audience numbers.

7.4 The phenomenon of Fake News must be contrasted to the checks

and balances used by Irish media organisations, which employ fact

checks, verification and other tests to news stories before publishing.

Fake News is a phenomenon aimed at driving audience numbers using

emotional algorithms and often employed to undermine the democratic

process. In many cases it is generated outside the jurisdiction where it

is published.

7.5 It is important that this review process addresses the issue of Fake

News and is informed by the ongoing debate in other European Union

countries. In a very recent case with potential consequences for social

media networks, an Austrian court ordered Facebook’s Irish subsidiary

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to remove fake and hate posts immediately.28 In Germany, there are

reports that ministers are preparing to introduce a bill in 2017 that will

order Facebook to compensate people who’ve been affected by fake or

defamatory stories passed around on the site. According to Thomas

Oppermann, the Chairman of Germany’s Social Democrats, a coalition

partner of Chancellor Merkel, the Government is considering a bill which

will ensure “if Facebook does not immediately delete the affected report

within 24 hours, Facebook will have to pay up to €500,000.”29 The

proposed new law would also require Facebook and other social

networks to set up a “legal protection unit” in Germany for people

affected by the stories, according to Oppermann. These local offices

would allow companies like Facebook to respond faster to complaints

against defamation and fake news.30 Meanwhile, Germany's head of

domestic intelligence, Hans-Georg Maassen, has said that “Facebook is

earning an awful lot of money with fake news,” and “a company that

earns billions from the internet also has a social responsibility.”31

8.0 Serious harm

8.1 This is a common-sense argument. For a case to be deserving of

damages and the courts, a ‘serious harm’ test should be applied as was

introduced in the Defamation Act 2013 which now operates in England

and Wales. Otherwise, Ireland has the Press Ombudsman’s Office,

28 Irish Times, ‘Austrian Greens score court victory over fake Facebook news,’ (12 December 2016). 29 The [London] Independent, ‘Germany may fine Facebook up to 500,000 Euros for every fake news article it publishes,’ (20 December 2016). 30 Forbes.com, ‘Germany Wants Facebook To Pay For Fake News,’ (19 December 2016). 31 Forbes.com, ‘Germany Wants Facebook To Pay For Fake News,’ (19 December 2016).

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established by statute, to adjudicate on complaints and seek redress. All

Independent News and Media publications operate within the Code of

Practice for journalists in Ireland. Adverse decisions of the Press

Ombudsman are published prominently where they were published.

8.2 The 2013 UK Defamation Act sets a threshold test whereby a

plaintiff must demonstrate ‘serious harm’ to their reputation in order to

succeed. McCarthy has pointed out that “this change means that

plaintiffs now face a more onerous evidential burden. For companies this

requires evidence of serious financial loss, which is difficult to prove in

practice. The equivalent provision in the Irish Defamation Act 2009 does

not require serious harm and defines a defamatory statement as one

that ‘tends to injure a person’s reputation in the eyes of reasonable

members of society.’ Significantly, the Irish Act further states that

‘defamation is actionable without proof of special damage,’ meaning

financial damage need not be proven. Based on these differences, the

defamation plaintiff will face a lower hurdle in Ireland than in the UK.”32

8.3 This review process must actively consider the ‘serious harm’

provisions in the UK legislation, with a view to similar provisions being

brought forward into Irish law.

32 Hugh McCarthy, ‘Libel tourism may become our newest cottage industry,’ published in Irish Times (10 November 2014).

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9.0 Operational realities

9.1 Revenues and budgets in the newspaper industry in most countries

have fallen steeply in the last decade. This makes it a tougher task to

produce quality journalism. However, the reality is that the ongoing

financial burden of fighting defamation claims also has a major impact

on this. Money that is spent fighting and settling cases is money that

should be spent on quality journalism.

9.2 At the same time, the ever-present threat of expensive litigation is

always at the back of one’s mind when working in newspapers. It

inevitably leads to caution – perhaps too much caution. Cox and

McCullough have reflected on the fact that media caution, arising from

fear of massive damages, is doing a disservice to the wider community:

“The quantum of damages awarded to successful plaintiffs can often be

very high and extremely unpredictable – much higher (in terms of

general compensatory damages) than that which would be awarded, for

example, in a case of the most serious personal injuries…. One can

postulate that the prospect of becoming liable to pay large sums in

damages for publishing a statement known to be true, but which cannot

be proven to be true, even if the story is one of public importance, is one

which may discourage any publisher from doing so…. moreover, where

the story in question is one with a ‘public interest’ element to it, the fact

that it is not published in such circumstances will mean that society as a

whole may be impoverished.”33

33 Neville Cox & Eoin McCullough, Defamation: Law and Practice, (Clarus Press, Dublin, 2014), p. 5.

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10.0 Legal costs

10.1 The costs of litigation are prohibitive and growing. If a case runs it

is not uncommon for costs to be in the region of €200,000 or more. This

is a cloud that hangs over all interactions with complainants. Lawyers

often operate on a no win, no fee basis and the financial burden falls

unduly on the publisher.

10.2 Protecting freedom of speech and people’s reputations should not

be reduced to a grubby bidding war. It seems that often complainants’

first recourse is to send a legal letter. While they are, of course, entitled

to do this, it seems that the propensity for doing so at such an early

stage is fuelled by the image of defamation as ‘easy money’.

11.0 Errors

11.1 Genuine errors should be recognised in some way. Tánaiste and

Minister for Justice and Equality Frances Fitzgerald has cited the

example of court reporters. They provide an essential public service

which allows justice not only to be done but to be seen to be done.

However, one slip of the pen can be very costly. A recent expensive

settlement by Independent News and Media followed a case where a

name was wrongly transcribed in the middle of the story. This should

have been simple to rectify with a correction.

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12.0 Press Ombudsman

12.1 The Press Ombudsman’s office is vastly under-used by the Irish

public. In our opinion, this is due to the fact that many complainants see

going legal as a way to get ‘easy money’. The Ombudsman offers an

effective remedy to reputational damage. The legislative framework for

this body and the adherence of newspaper publishers should be a

source of pride to this country. If one looks to the UK, for example, the

disrupted, confused and disputed nature of press regulation stands in

stark contrast.

12.2 By signing up to the Code of Practice and adhering to its principles,

Independent News and Media shows it is a responsible publisher.

12.3 However, Independent News and Media would deal with perhaps a

dozen or so complaints via the Ombudsman each year and most of

these would be from lobby groups/politicians. Any reform of the

Defamation Act should encourage complainants to seek redress through

the Office of the Press Ombudsman – perhaps with this being a

consideration when it comes to the amount of damages being

considered. Certainly, the fact that a publisher signs up to the Press

Ombudsman and adheres to its rules should mitigate to some degree

the idea that it has published a story irresponsibly.

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13.0 Ireland’s reputation

13.1 Ireland has a reputation abroad of being a place where defamation

pay-outs and associated legal costs have lost the run of themselves. As

mentioned elsewhere in this submission, there is also a potential danger

that the Republic of Ireland could become the destination of choice for

libel tourism. This is damaging to the country’s reputation abroad and

could ultimately discourage businesses from operating here.

13.2 McCarthy observes that “the opportunity for foreign defamation

litigants to forum shop in the UK has been greatly restricted following the

substantial reforms implemented through the UK Defamation Act 2013.

The UK Act has significantly recalibrated the law such that it is now

much more difficult for a plaintiff to succeed. These developments may

hold far-reaching implications for Ireland. Relative to the UK, Ireland

now appears to be the more plaintiff-friendly jurisdiction, and

consequently it is likely that Irish courts will see an increased volume of

such litigation.”34

14.0 Conclusion

14.1 The Press is the eyes and the ears of the public and holds the

powerful to account. It is increasingly recognised that newspapers and

their constituent websites provide an invaluable service for a functioning

democracy. Our outdated defamation regime ties the hands of the

Press behind its back. This does not serve democracy well. This is

especially the case at a time when our very funding models are

34 Hugh McCarthy, ‘Libel tourism may become our newest cottage industry,’ published in Irish Times (10 November 2014).

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challenged. Ironically, while revenues have seen continual decline in

recent years in most cases, defamation costs have risen exponentially.

14.2 Independent News and Media treats all complaints seriously and

engages with the Press Ombudsman’s Office on complaints received by

the office. We expect to operate within the confines of a reasonable

defamation regime. The health of a country’s democracy can be seen in

the health of its Press. The Joint Committee on Communications,

Climate Action and the Environment will be considering the potential for

public funding for public interest journalism this year.

14.3 One fundamental way to protect the vibrancy of the Press without

employing public funds is to bring our defamation laws into line with the

rest of the European Union. This is a golden opportunity for the

government to show Ireland as a shining light for freedom of speech and

reinforce the position of the independent Press Council of Ireland.

14.4 A proper reform of the State’s defamation legislation to bring it into

line with other countries is long overdue and very necessary. The

Defamation Act 2009 is hugely deficient in a number of important

aspects. This review process is therefore welcome.

14.4 Ireland’s defamation regime needs to be overhauled to uphold the

freedom of the press. This is important not just so the media industry

can thrive and serve the public interest, but also as it is fundamental to

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ensuring that we have a vibrant and democratic republic. In the inspiring

words of the President of Ireland on May 3rd, 2016:

“This year, 100 years since the momentous event of the 1916

Easter Rising, we are reminded of the importance of a free and

democratic society and of the central role that journalism must play

in the quest for a full and accountable democratic republic. Press

freedom and the right to information have a direct relevance to

achieving the vision of a true Republic. They are central elements,

too, in creating the kind of sustainable and equal societies we all

aspire to for our future…. Today, let us strengthen our resolve to

defend the rights of a free press and let us celebrate the

possibilities of quality journalism as we build an inclusive society to

the benefit of all.”35

35 Office of the President of Ireland, ‘Statement by President Michael D. Higgins, to mark World Press Freedom Day,’ (3 May 2016).